A worthless preclusion orderDecember 23, 2014
Optimal Well-Being Chiropractic, P.C. v Chubb Indem. Ins. Co., 2014 NY Slip Op 51807(U)(App. Term 2d Dept. 2014)
“Defendant’s only argument on appeal with respect to its cross motion is, in essence, that the complaint should have been dismissed on the ground that plaintiff will not be able to demonstrate its right to recover at trial because plaintiff is precluded, pursuant to a prior so-ordered discovery stipulation, from offering, among other things, the bills or its own documentary proof of the submission of those bills. At a trial, a no-fault plaintiff’s prima facie burden is to demonstrate proof of the submission to the defendant of the claim forms at issue (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33; Alev Med. Supply, Inc. v Geico Gen. Ins. Co., 44 Misc 3d 131[A], 2013 NY Slip Op 52322[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). As the record demonstrates that the bills at issue were denied, and as the denials admit receipt of the bills (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]), defendant has not shown that plaintiff will not be able to establish its right to recover at trial. Therefore, defendant has not established a basis to disturb so much of the order as denied defendant’s cross motion for summary judgment dismissing the complaint.”
Absent an order striking the complaint, discovery sanctions against the medical provider are futile.